Effort To Overturn Key Ruling On Abortion Can't Begin Too Soon

July 19, 1985|By Stephen Chapman, Tribune Media Services

The Justice Department's request that the U.S. Supreme Court overturn Roe vs. Wade, its 1973 decision effectively legalizing abortion on demand, may be faulted for displaying more valor than shrewdness.

The court reaffirmed that ruling just two years ago, and its membership hasn't changed. Given the doubtful health of Justice Lewis Powell, the administration might better wait until President Reagan has had the chance to install a replacement.

The friend-of-the-court brief filed on behalf of two state laws regulating abortion also has been depicted as a cynical political gesture. Its real purpose, the thinking goes, is not to persuade the court to reverse itself, which is highly unlikely, but to appease anti-abortion groups.

Granted, the chance of success is slim. Nothing suggests that a majority of the justices is ready to repent of the court's sweeping presumption.

In an ordinary case, caution might be smart. But Roe vs. Wade was no ordinary ruling. It was a legal sanction of the mass killing of unborn children. The effort to overturn it can't begin too soon. Both the court and the American people need to be educated about the profound defects of the decision, as law and as policy.

The laws being considered by the court here are by no means sure losers. They oblige doctors to provide patients with certain scientific information, to use the abortion method least dangerous to the fetus and to protect surviving fetuses. Some of these provisions may pass muster with the court, even if it stands by the 1973 ruling.

In the 1983 Akron decision, the court did broaden Roe, striking down one requirement (hospitalization for a second-trimester abortion) that it had suggested itself in 1973. It also showed impatience with restrictions on methods and with requiring information apparently aimed at discouraging abortion.

Still, the court conceded that states can require that patients be fully informed about ''the physical and emotional implications'' of the abortion.

In a separate case, it upheld a Missouri law requiring that a second physician be present at the abortion of a ''viable'' fetus and ''take all reasonable steps . . . to preserve the life and health'' of the child.

These laws arguably fall within the type of regulation allowed by the court, an argument that will be made by the two states' legal representatives. The administration, seeing nothing to be gained by simply echoing them, has concentrated its energies on exposing the unraveling fabric of Roe.

At least three justices already recognize the error. In a dissent from the Akron ruling, Sandra O'Connor spoke for William Rehnquist and Byron White when she wrote that ''the state's interest in protecting potential human life exists throughout the pregnancy.'' Medical science has rendered late-term abortions safer while making fetuses ''viable'' at an ever-earlier age, she noted, putting the ruling ''on a collision course with itself.''

But that view falls two votes short of prevailing. Some court-watchers think Chief Justice Warren Burger, who voted for the original decision, would repudiate it if his vote would make a majority. If so, a Reagan appointment to replace any of the five other pro-Roe justices is the key to a reversal.

That may be grounds for long-run optimism, but the administration is wise not to take it as an invitation to short-run complacency.

Turning the court around completely may take years, even under the best of circumstances. Justices rarely like to make radical shifts overnight, and the importance of public deference to the judiciary makes it hazardous to do so. Roe may fall not to a single stunning blow but to a succession of glancing ones.

Given that, the administration should miss no chance to ask the court to accept restrictions on abortion within Roe's constraints. But it is morally obligated not to let those efforts obscure the larger goal of granting full protection to the unborn.

The Justice Department's brief buttresses the effort by Pennsylvania and Illinois to make small gains, while reminding the court and the nation that small gains ultimately are not enough.